MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 21 MAY 2002
         DOCKET NUMBER: AR2002067465

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Thomas Lanyi		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, the applicant requests reinstatement in an active status retroactive to 1997, promotion to colonel, service credit in that grade, and retirement in that grade based on the mandatory removal date (MRD) for a colonel.

APPLICANT STATES: That a standby advisory board selected him for promotion to colonel; however, he was not notified of the results of that board until 12 September 2001, and has not been afforded the benefits that resulted from selection by that board. Additionally, Senate confirmation has not occurred. He states that he should have been a promotable lieutenant colonel in 1997 with 28 years time in service, and that his removal from an active status should have been that of a promotable lieutenant colonel.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant was appointed a Reserve second lieutenant on 9 September 1969, served on active duty until 1 April 1983 when he was released because of his non selection for promotion. Immediately upon his release he was assigned to the Reserve Control Group at St. Louis and remained in the Army Reserve as a troop program unit (TPU) member, a member of the Reinforcement Control Group, and as an individual mobilization augmentee (IMA). He was promoted to major effective on 1 November 1985 with a date of rank of 2 April 1983. He was promoted to lieutenant colonel on 1 April 1990. The applicant was a Medical Service Corps (MSC) officer and an Army aviator.

The applicant’s officer evaluation reports from 1970 to 1979 while on active duty generally show that his rating officials believed that he should be promoted with his contemporaries, with two reports showing that he should be promoted ahead of his contemporaries. His four reports from 1980 until his release from active duty were all below center of mass reports. On his report ending in March 1981 the applicant’s rater stated that the applicant should not be promoted. Of the applicant’s first four reports subsequent to his release from active duty, three were below center of mass. Of his eight reports thereafter, seven were center of mass, and one above center of mass.

The applicant’s has applied to this Board on five occasions prior to his current application. On 8 March 1999, in response to his request for consideration by a colonel board, this agency requested that the Army Personnel Command at St. Louis review his records to determine if the applicant was eligible for special selection board consideration (AR1999019681).

On 4 November 1999 the applicant’s request for promotion to colonel was denied by the Board (AR19990330005). The Board indicated that the applicant’s records had been reviewed by a special selection board under the original selection criteria, and the applicant was notified that he was not selected for promotion.

On 20 June 2000 the Board again denied his request for promotion to colonel (AR2000042587), again indicating that his records had been reviewed, and that he was notified that he was not selected for promotion.

On 4 July 2000 the applicant submitted a request for reinstatement in the Army Reserve effective on 9 December 1997. That request was apparently not acted upon.

On 29 August 2000 his request for promotion was again denied (AR2000045879), the Board indicating that his records had been reviewed under the 1995 criteria. He was again not selected and so notified.        

On 28 August 2001 the Army Personnel Command at St. Louis notified the applicant that a standby advisory board, which convened on 17 April 2001, considered him for promotion under the 1997 criteria, and that he had been recommended for promotion. He was also notified that the earliest date that he could be promoted was the Senate confirmation date of the criteria year that he was recommended under – 2 March 1998.

The applicant’s mandatory removal date as a lieutenant colonel based on his initial appointment date of 9 September 1969, was 1 October 1997.

The 1997 Army Medical Department Colonel Selection Board convened on 28 May 1997 and recessed on 13 June 1997. The President approved the board results on 15 November 1997.

Section 14308, Title 10, U.S.C. states in effect that when the report of a selection board is approved by the President, the Secretary of the military department concerned shall place the names of all officers selected for promotion within a competitive category on a single list for the competitive category, to be known as a promotion list.

The Reserve Officer Personnel Management Act provides for mandatory removal from the Army Reserve because of age or length of service. It states that colonels (to include lieutenant colonels selected for promotion to colonel) will be removed from active status no later that the first day of the month after the month completing 30 years of commissioned service. Lieutenant colonels (not recommended for promotion to colonel) will be removed the first day of the month after the month completing 28 years of commissioned service.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant indicates in his application to this Board that he was discharged on 9 December 1997. The applicant should have been transferred to the Retired Reserve or discharged on 1 October 1997, his mandatory removal date, as required by law. Consequently, he was not entitled to be placed on a recommended list for promotion to colonel. He was not a promotable lieutenant colonel. His mandatory removal date occurred prior to Senate confirmation of the selection board results under the 1997 criteria.

2. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

4. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JLP __ __BJE __ __TL____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002067465
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020521
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	135.00
3.	136.00
4.	310
5.
6.